December 27, 2013

Did the judge in the Utah same-sex marriage case "give Justice Scalia the finger"?

So said lawprof Jason Mazzone, blogging at Balkinization, quoted today in the NYT in a piece titled "Utah Ruling Means No Respite for the Supreme Court on Same-Sex Marriage," by Adam Liptak. Liptak writes that the U.S. Supreme Court might have hoped, after this year's 2 somewhat modest same-sex marriage cases, to put off the big same-sex marriage question — whether there is a right to same-sex marriage — for a few more years. But the Utah case, it seems, is crushing that hope:
... Judge Shelby’s decision will certainly get the justices’ attention. He acknowledged, for starters, that the Supreme Court’s 5-to-4 decision striking down part of the Defense of Marriage Act, United States v. Windsor, could be read to support either side in his case....

To resolve the tension, Judge Shelby looked to Justice Antonin Scalia’s dissenting opinion in Windsor.

“The view that this court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion,” Justice Scalia wrote.

Judge Shelby wrote, referring to himself, that “the court agrees with Justice Scalia’s interpretation of Windsor.”
Is that "giv[ing] Justice Scalia the finger"? Scalia did what many dissenting opinions do: call attention to the implications of the principle established by the majority, which the majority — posing as modest and incremental — coyly pretends are not there. If Professor Mazzone is right, and Judge Shelby meant to say "fuck you" to Justice Scalia, then it must be acknowledged that Justice Scalia was asking for it.

49 comments:

Illuninati said...

"Is that "giving Justice Scalia the finger"?"

"If Professor Mazzone is right, and Judge Shelby meant to say "fuck you" to Justice Scalia, then it must be acknowledged that Justice Scalia was asking for it."

It probably is a "fuck you". It is also a "fuck you" to the people of Utah who voted on the issue.

Henry said...

"Is that "giving Justice Scalia the finger"?"

Couldn't you just say that Judge Shelby gave Justice Scalia a huge hideous handbag for Christmas?

Shouting Thomas said...

I often wonder why this issue appeals so much to you, Althouse. Perhaps, it's just that it is a novel area of the law. Perhaps, it's just good for blog ratings. Maybe a number of things.

Nostalgia for the good old days when you imagined yourself as Dylan's girlfriend singing folk broadsides and combating the evil bigots clearly plays a major role in your obsession. You aren't willing to let go of your vision of yourself as morally superior.

Is this issue really fodder for big emotional battles between jaded lawyers and judges? Probably not.

My prediction. None of this will much change the reality of what it is to be gay.

You are deluded in believing that the problems of gay people are external and caused by others. The problems are internal.

The grief of parents deprived of blood grandchildren will not go away. People will still think that gay sex is funny, just as all sex is funny. People will still laugh about gays and tell jokes about them, because people laugh and tell jokes about everybody. Your demand for an exemption for gays is ridiculous. You are clearly lobbying for preferential treatment for your son here.

Guilt will continue to haunt gays because it arises from within them. Our first obligation to our parents is to continue their genetic line. That, and the horrific plague that gay men dropped on us, is the source of the guilt, Althouse. Get real.

You can't legislate this guilt away.

EDH said...

Following Scalia's argument, Judge Shelby is giving the finger to "the People".

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the [SCOTUS] majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution...

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do.
Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

Inga said...

I often wonder why these issues bother Shouting Thomas so much. Some people are showing themselves to be morally deficient in such matters and it has nothing to do with religion.

Shouting Thomas said...

I often wonder why these issues bother Shouting Thomas so much.

I lived in the midst of an epidemic caused by the reckless behavior of gay men.

The entire cast of one of my colleagues' theatrical troupe was exterminated by this epidemic. And, that was just the beginning.

That was a fairly significant event in my life. Sticks in my memory.

The second reason for my interest in this subject is that Althouse is engaged in a continual campaign of false accusation against men like me. She continues to insist that straight men have been involved in a campaign to demean and harm gays.

She's lying. I'm defending my own kind against Althouse's lies, Inga.

Shouting Thomas said...

I'm offering Althouse some pretty novel ways to look at this subject that seem to never have occurred to her.

Here's the big one to ponder, prof.

From whence does guilt arise?

You are assuming, without ever apparently having questioned your assumption, that the guilt that gays feel arises from societal disapproval.

I say you are wrong. I say the guilt arises from within gay people, that it serves a purpose (just as guilt serves a purpose for all of us), and that you are foolish in believing that you know how to put an end to that experience of guilt.

Henry said...

ST wrote: I lived in the midst of an epidemic caused by the reckless behavior of gay men.

Caused by a retrovirus; spread by reckless behavior.

You could campaign ferociously against reckless behavior. That would mean advocating for societal structures that encourage responsible behavior.

Instead you're shouting against the tide. Every day.

Shouting Thomas said...

You could campaign ferociously against reckless behavior. That would mean advocating for societal structures that encourage responsible behavior.

I am doing precisely that.

I am campaigning for the return of the traditional role of gays pre the great coming out.

The old way was better for everybody.

Left Bank of the Charles said...

If Scalia recognizes the destination as inevitable, perhaps he is not opposed to getting there as quickly as possible.

Both Mitt Romney and Chris Christie stood down when they could have fought on. They didn't see interposing of unnecessary delays as consistent with the rule of law.

Sure, Justice Kennedy invited such delays, but Justice Scalia did not concur in that opinion.

Inga said...

AIDS can be passed between heterosexual people ST. Look at Africa.

Inga said...

And ST, brow beating people into seeing your point of view won't change theirs. I suspect you enjoy abusing and harrassing Althouse more than you truly care about the health and welfare of our society.,

Shouting Thomas said...

AIDS can be passed between heterosexual people ST. Look at Africa.

Well, yes, but the epidemic might never have happened had the great coming out of the closet never occurred.

In other words, the traditional role was working.

The revolution, as almost all revolutions must be, was unneeded and far more destructive than what existed before.

Quayle said...

"You can't legislate this guilt away."

No, but in the Mormon wars it was proven that you could legislate a church away.

With this I note that the U.S. Federal Courts are back in Utah one again throwing their weight around on the issue of the majority's right to determine what is and is not a marriage.

In the first round the Federal Courts said that no protections in the constitution, not even the First Amendment, can serve to block or hinder the majority of right-thinking Americans from deciding what is and is not a marriage.

Now in round two the Court is back declaring with an equal show of certitude and sanctimony that, actually, protections in amendments to the Constitution do indeed trump the majority decision on what is and is not a marriage.

You see, the constitution is so many things it can be whatever you want it to be.

And all the while the Mormons are and have been merely consistently following their conscience and what they believe is their duty to God.

Because before there was a U.S. Constitution, there was a God.

Shouting Thomas said...

And ST, brow beating people into seeing your point of view won't change theirs. I suspect you enjoy abusing and harrassing Althouse more than you truly care about the health and welfare of our society.,

Yes, I am very effective, Inga. That's precisely what I intend to be. Thanks for the confirmation.

I don't make a living, nor do I intend to make a living from political activism. I'm often asked to do that, because my writing and multimedia skills are very compelling.

I keep it to tossing my ideas out there. You'd be surprised how those ideas radiate out into the universe.

Inga said...

ST, gays in the closet still had gay sex, they just didn't admit it. It was just as dangerous if it was unprotected closeted sex, as if they were out and openly gay. So you want to encourage gays to not have gay sex? Really, will you stop having straight sex?

Inga said...

Ah ST, you are effectively turning people off to the very views you espouse, you are not being effective, I hate to break it to ya.

Shouting Thomas said...

It was just as dangerous if it was unprotected closeted sex, as if they were out and openly gay.

You are completely wrong.

The traditional role for gays, which demanded that they marry a person of the opposite sex to produce children and satisfy their familial obligations, limited the sexual opportunities of gay men.

Straight men are the same as gay men, but women act as a brake on their sexual acquisitiveness, because women say no. Gay men have no such brake on their behavior.

Well, they used to under the traditional system, but that was removed by the great coming out, which immediately resulted in the AIDS epidemic.

For your information, 1 plus 1 really does equal 2.

Henry said...

Well, yes, but the epidemic might never have happened had the great coming out of the closet never occurred.

The virus doesn't care if you have sex in secret or not.

In any case, there is no going back. Sure you could throw up some legal roadblocks here and there, or cobble together a cultural bunker to hide in, but you're not going to tell 3+ generations of gay people to go back to marginalizing themselves.

If you care about HIV you should also consider how a neo-closeting regime would affect a post-liberated population. HIV is preventable and treatable. How are you going to reach at risk people with that message if you simultaneously want to deny their existence?

Shouting Thomas said...

Ah ST, you are effectively turning people off to the very views you espouse, you are not being effective, I hate to break it to ya.

You only speak for yourself, Inga.

And, you are impossibly dense.

You really are hearing what I'm saying, but you are in maternal defense mode. You're imagining that the reality that I am describing would disappear if only I were nicer.

Illuninati said...

Shouting Thomas said:

"I am campaigning for the return of the traditional role of gays pre the great coming out.

The old way was better for everybody."

ST, have you read the book called AND THE BAND PLAYED ON by Randy Shilts published in 1987? This book was written by an openly homosexual man about the role the gay leadership played in blocking normal epidemiological control of the AIDS virus when it was still potentially containable. AIDS is the only virus which comes with its own civil rights. Thousands of gay people have died who might still be alive if the gay leadership had been more responsible.

Shouting Thomas said...

HIV is preventable and treatable.

HIV is preventable and treatable at a most extraordinary cost.

South Park was kidding when they joked that the cure for AIDS is an ocean of money!

What guilt do gay men deserve for inflicting this financial catastrophe on all of us?

Shouting Thomas said...

ST, have you read the book called AND THE BAND PLAYED ON by Randy Shilts published in 1987?

I've read the book and seen the movie several times.

Hilariously, I saw the movie once during medical training courses an employer sent me to.

The movie is a propaganda offensive determined to "prove" that Ronald Reagan and Republicans actually caused the AIDS epidemic. It's as hilariously stupid in its own way as "Reefer Madness."

EDH said...

Is this the point in the movie when Inga and ST drop all pretenses and take each other in a romantic embrace and declare their undying love for each other?

No? Okay, wrong movie.

Illuninati said...

Shouting Thomas said:
"The movie is a propaganda offensive determined to "prove" that Ronald Reagan and Republicans actually caused the AIDS epidemic"

I have not seen the movie. It must be different from the book. It has been years since I read the book, but I don't recall anything about Reagan causing the epidemic. The book pointed out the terrible failures of the gay leadership and their shared responsibility in allowing the epidemic to escape control.

somefeller said...

Yes, I am very effective, Inga. That's precisely what I intend to be. Thanks for the confirmation.

The delusions of grandeur are strong with this one.

I don't make a living, nor do I intend to make a living from political activism. I'm often asked to do that, because my writing and multimedia skills are very compelling.

Yes, and I'm sure the people asking you to become the Pen of the Revolution are very effective, too. Total machers in their local political and intellectual scenes, I'm sure.

I keep it to tossing my ideas out there. You'd be surprised how those ideas radiate out into the universe.

Just you wait, ST will be remembered as the Galileo of his era. Just you wait. But for now, this blog allows him an opportunity to interact with (shout at?) a law professor, which is an opportunity he doesn't have in the non-cyber world.

Henry said...

HIV is preventable at a very minimal cost.

somefeller said...

Regarding the Utah ruling, would it be more accurate to say that the Utah judge was saying "vaffanculo" to Justice Scalia? The Justice likes that term.

Shouting Thomas said...

Just you wait, ST will be remembered as the Galileo of his era. Just you wait. But for now, this blog allows him an opportunity to interact with (shout at?) a law professor, which is an opportunity he doesn't have in the non-cyber world.

Well, you're wrong on all counts, but particularly the last.

I worked for 15 years in corporate law with the most important and prominent litigators of our generation.

So, I can talk to a prominent lawyer or law professor whenever I like.

somefeller said...

I worked for 15 years in corporate law with the most important and prominent litigators of our generation. So, I can talk to a prominent lawyer or law professor whenever I like.

And I'm sure they will return your calls quickly. "Mr. Jones, Mr. Thomas is calling again." "That weird IT and coffee guy from the 90s? Tell him I'm not in!"

Illuninati said...

somefeller said...
"Just you wait, ST will be remembered as the Galileo of his era. Just you wait. But for now, this blog allows him an opportunity to interact with (shout at?) a law professor, which is an opportunity he doesn't have in the non-cyber world"

Good one. I imagine Shouting Thomas' fame will be eclipsed by somefeller.

Shouting Thomas said...

I'm going to be visiting my old friends next week. Lunch at the company cafeteria. One of the best restaurants in Midtown.

Would you like a report?

Kelly said...

It's laughable that Reagan or the republicans had any influence whatsoever. I was young at the time, but I remember the San Francisco mayor trying to close bath houses in his city to tamp down the epidemic and Gay men all but rioting over it.

I remember puzzling over the meaning of bath houses and the connection to the spread of the disease. Did taking baths together somehow spread it I wondered? It's ridiculous to think they would have paid any attention to what Reagan had to say on the subject.

somefeller said...

Good one. I imagine Shouting Thomas' fame will be eclipsed by somefeller.

I doubt that. His thought-provoking ideas are spreading far and wide via this blog. There's no way I can eclipse that. Even Althouse is just a remora next to this big shark now.

Would you like a report?

Sure! Everyone loves a good story. Will any prominent law professors be there whom you can berate? If so, please don't leave that part out.

Illuninati said...

The reason I brought up the book is because the gay leadership don't appear to be any more responsible now than they were then. It is difficult comprehend how deliberately alienating people, who are otherwise content to live and let live, over something this silly (gay marriage) can benefit anyone including the gay community.

Shouting Thomas said...

I doubt that. His thought-provoking ideas are spreading far and wide via this blog. There's no way I can eclipse that. Even Althouse is just a remora next to this big shark now.

You've noticed, and it's irritating you that you noticed.

That's a start. We can build from there.

Shouting Thomas said...

@somefeller,

What we usually talk about is the good old days of living high off the hog in 5 star hotels on litigation sites where we worked 24 hours a day.

And, who has a new grandchild, and who has passed on.

Lyssa said...

Henry said:

Shouting T responded: I am doing precisely that.

Shouting T, you've commented positively about prostitutes and prostitution on many occasions. How do you think it's spreading in Africa? You are the last person who can claim the mantle of encouraging responsible [sexual] behavior.

Shouting Thomas said...

The reason I brought up the book is because the gay leadership don't appear to be any more responsible now than they were then.

They can't stop.

They believe, as Althouse does, that the guilt that they feel was implanted in them and that political action will relieve them of that guilt.

The reality is that we all suffer guilt over our sexuality. For different reasons. It's part of who we are because it has a purpose.

n.n said...

So, Shelby is another activist judge who is incapable of consistent rulings, and is unfamiliar with human biology, having chosen "sexual education" as a path to self-justification. Is he related in disposition to the California judge with similar qualifications? Does this mean that the principles of evolution have been rejected by "decent" people in favor of progressive (i.e. selective) morality?

somefeller said...

What we usually talk about is the good old days of living high off the hog in 5 star hotels on litigation sites where we worked 24 hours a day. And, who has a new grandchild, and who has passed on.

As it should be. Order a good steak, for old time's sake and charge it to the firm.

Chuck said...

I know that when I first read Judge Shelby's decision in the Utah case, it is exactly what I thought; "He's giving Scalia the middle finger."

It was a legally pointless gesture on Shelby's part; Scalia was writing in DISSENT, in Lawrence v. Texas. Scalia was rightly pointing out the limitlessnes of the majority opinion delivered by Kennedy, who was denying any such limitlessness.

Shelby is effectively saying, "Yes, Justice Scalia, you were right; and ha ha ha ha..."

Chuck said...

I know that when I first read Judge Shelby's decision in the Utah case, it is exactly what I thought; "He's giving Scalia the middle finger."

It was a legally pointless gesture on Shelby's part; Scalia was writing in DISSENT, in Lawrence v. Texas. Scalia was rightly pointing out the limitlessnes of the majority opinion delivered by Kennedy, who was denying any such limitlessness.

Shelby is effectively saying, "Yes, Justice Scalia, you were right; and ha ha ha ha..."

FullMoon said...

My 30 something neighbor died of aids.
He was a stereotypical" media gay man". Brilliant, good looking, impressively dressed always. He actually was a rocket scientist, among other things.

Another friend died of aids in San Quentin prison. He was not a rocket scientist.

I believe Shouting Thomas' experience living and working among gay people gives him an advantage over many here as regards the full spectrum of the gay community.

ST is sometimes a little over the top with his attitude towards AA but all of his arguments cannot be dismissed because of that.

jr565 said...

Shouting Thomas wrote:
Well, yes, but the epidemic might never have happened had the great coming out of the closet never occurred.

In other words, the traditional role was working.


That's not just an indictment of gays, but heterosexual too. Gays died from aids, but plenty of other people, including heterosexuals got various STD's.
Promiscuity seems to be the problem, not just gayness. And gays aren't the only ones who are promiscuous.

jr565 said...

Chuck wrote:
It was a legally pointless gesture on Shelby's part; Scalia was writing in DISSENT, in Lawrence v. Texas. Scalia was rightly pointing out the limitlessnes of the majority opinion delivered by Kennedy, who was denying any such limitlessness.

Shelby is effectively saying, "Yes, Justice Scalia, you were right; and ha ha ha ha..."

but Kennedy argued that there was no such limitless. Therefore Scalia was right and Kennedy was wrong. And therfore lying, or obtuse beyond belief.
Shelby may be giving the finger to Scalia, but Scalia was correct on the ramifications of the decision. Why do gay rights advocates think they can get away with such obfuscation.

sunsong said...

From Sim Gill, Salt Lake County District Attorney:

The Outline of The Argument and Two Editorial Points

1. The Federal Constitution is the Supreme Law of the land. Where there is a conflict between the US Constitution and a State Constitution or State law the Supremacy clause trumps The State.

2. Conflicts between Federal and State law are often resolved by the Fourteenth Amendment's due process and equal protection rationalization. This is especially true when individual rights and liberty interests are implicated. This came into effect after African American's were emancipated but the States tried to deny them their freedoms as State rights argument by passing, democratically articulated, but constitutionally violative, laws.

3. The Fifth Amendment due process clause has found individual liberty as a constitutionally fundamental right. Individual liberty is highly prized and a jealously guarded right.

4. The Tenth Amendment States right leaves for states all the rights not articulated nor found in the Constitution to articulate and assert. Note, they cannot be in conflict with, nor deny, those rights afforded in the United States Constitution absent some extremely compelling reasons, strictly construed, to narrowly achieve that objective. Arbitrariness loses.

5. The right to determine marriage laws is clearly in the province of States nothing thus far has altered that or ever will. However, such rights are not exclusive, nor without oversight where they conflict with fundamental rights afforded and protected in the US Constitution. For example, in Loving v. Virginia, it was against the law for inter-racial couples to marry. Although such laws were the result of participatory democracy, that fact alone, was not sufficient enough for such laws to violate the individual rights of citizens under the Constitution. Such prohibitions on marriage were ruled unconstitutional as a matter of Federal constitutional protections.

6. It is generally recognized that where 5th Amendment liberty interests collide with 10th Amendment States rights chances are that the Tenth Amendment will lose where the Fifth Amendment right has been clearly found to exist (See sub. 2 and 4 above).

7. The now famous Windsor case, for the first time, took up the question, at the Federal level, the issue of same- sex couples rights. It found as a matter of federal law, not State, that there was in the Fifth Amendment's Due Process clause an individual liberty interest right in the federal Constitution. This, for the first time, found that such a right came out of the protections within the Constitution. Windsor recognized same sex unions for the purposes of federal law in the US Constitution.

8. The Windsor ruling opened the door for a future question about the potential clash between a federal recognized right and State action that might conflict with it. Justice Scalia saw the writing on the wall noting and implied in not so many words that States would likely lose any such arguments in the future after the Windsor ruling where the Fourteenth Amendment's due process and equal protection clause would now extend that argument to the States (See paragraphs 2-6 above)...


Continued

sunsong said...

Sim Gill continued…

9. The Utah decision is important because it is the first decision AFTER Windsor applying the federal recognition of a Fifth Amendment's individual liberty interest right as in conflict with a State Constitution amendment getting its authority from the Tenth Amendment rationalization.

10. The State is in a precarious position because its Amendment Three has been found to be in violation of a fundamental protected right and thus ruled unconstitutional, not in a vacuum, but in direct lineage from the same right being recognized as a matter of Federal Constitutional protection in Windsor. This protection now is NOT speculative but was identified, recognized and established by the US Supreme Court in Windsor and is extended to the State of Utah through the equal protection and due process clause of the Fourteenth Amendment. However, how far that right goes, as far as a State is concerned, will ultimately have to be answered by the US Supreme Court.

A. United States Constitutionally protected rights cannot be legislated away by a majority of voters. It is not the democratic process that sanctifies it, by mere consensus, but by the supremacy of the constitutional protections even if they only protect the minority of the population. The ability to vote cannot trump constitutional rights. This is what is fundamentally unique about our government that it protects us against the tyranny of the majority out of constitutional principle rather than sheer force of numbers and powers. The weakest person, alone, can withstand an entire Nation of people if they are wrong in principle but strong in numbers. Sorta like the lone worshiper who prays to God with an open heart gaining direct access on religious principle and humility rather than the qualified and demanded access by a throng of worshipers who believe in their ritual of presence every Sunday as a pathway to God's Kingdom and discriminate against those who don't show up in all too human ways.

The Law and God are the great equalizers, everyone in the middle are just weak substitutes where they would have their personal opinion dictate the rights of others. Just as we cannot condition civil rights, either we all have them or truly none of us really do. Our strength comes from our reason both as a species if you are secular and from the gift of reasoned knowledge if you are religious. We are poor substitutes for Law and God, sorry, its that human fallibility thing.


continued...

sunsong said...

Sim Gill continued...

B. As an article of faith, a doctrinal belief cannot be questioned. Kierkegaard asserted that the enemy of faith is reason not to diminish the power of faith but when the fallibility of human agency tries to reason the primacy of faith for others. Either you have it or you don't.

Human society, by necessity requires shared, lived space, and restrictions upon that reality of human interaction can either be dictatorial or be within the confines of civil society administered by rules (laws) of fairness and justice. To this extent, America has embraced a Constitutional framework to work out the interactions of shared space and reasoned justice. This is OUR social and judicial tradition. We either continue to struggle through this imperfect experiment or we reject it. So far this experiment in democracy has worked out well but not without effort or sacrifice. It has corrected many of our historical errors. The question will be if we are still committed to it?

Civil rights are not defined merely by the comfort and protections they bring exclusively to me and when they agree with my needs. They are defined by when they protect, bring comfort and shelter those I do not agree with consistent with the principles we all agreed to in its inception, or until we change them Constitutionally at the national level. That is why the Constitution is the Supreme law of the land (see sub. 1 above) and our private faith has nothing to do with it. That is between us and our private conversations of faith with God.

No religious institution's article of faith can be trumped by law just as the religious reasons (not faith) cannot trump constitutional rights. It's that separation thing.

The privacy of worship, ritual, faith are not the province of any government or unbelieving citizen nor will they ever be. Similarly, the constitutional exercise of your rights are no business of mine if they do not violate the integrity of my rights and existence. This is what is still great about our country.